FERPA Violation

[quincy]

What is the name of your state?FERPA / School Records / Family Law Matter
I am the non-custodial parent and party to a custody matter surrounding my daughter. Needless to say, the matter is contentious. My daughter has attended 3 high schools since this matter ensued 3 years ago. It took me over 8 months and filing a complaint with the DOE to get my daughter's school records that are afforded me under FERPA. Each school was reluctant to provide me the records and the DPS legal department was even more daunting. The 8 month delay has obviously impacted my custody case. I have all requisite documents and email correspondence, as well as confirmation from the DOE that my rights as a parent were violated under FERPA. I would like to pursue this matter. Is it viable?

What is the name of your state?

 

[dhmachura]

Colorado, specifically Denver Public Schools. I reached out to the Colorado DOE and they claim that DPS does not fall under their jurisdiction.

 

[quincy]

Colorado, specifically Denver Public Schools. I reached out to the Colorado DOE and they claim that DPS does not fall under their jurisdiction.

Do you know why the schools were reluctant to provide you access to your daughter's records?

Here is the government guide on FERPA for parents: https://www2.ed.gov/policy/gen/guid/fpco/ferpa/parents.html

 

[Taxing Matters]

The 8 month delay has obviously impacted my custody case. I have all requisite documents and email correspondence, as well as confirmation from the DOE that my rights as a parent were violated under FERPA. I would like to pursue this matter. Is it viable?

Well, to start off with, it is actually not obvious to me what impact that delay had on your custody matter nor is it obvious how important these records are to the outcome of your custody case, if they impact it at all. Second, understand that FERPA does not expressly give you a private right of action for violations. What FERPA does is withhold federal education funds from schools that do not comply with the provisions of FERPA. Nor is private right of action implied either. The U.S. Supreme Court has specifically held that there is no private right of action available in federal law for FERPA violations:

With this principle in mind, there is no question that FERPA’s nondisclosure provisions fail to confer enforceable rights. To begin with, the provisions entirely lack the sort of “rights-creating” language critical to showing the requisite congressional intent to create new rights. Alexander v. Sandoval, supra, at 288—289; Cannon, supra, at 690, n. 13. Unlike the individually focused terminology of Titles VI and IX (“no person shall be subjected to discrimination”), FERPA’s provisions speak only to the Secretary of Education, directing that “[n]o funds shall be made available” to any “educational agency or institution” which has a prohibited “policy or practice.” 20 U.S.C. § 1232g(b)(1). This focus is two steps removed from the interests of individual students and parents and clearly does not confer the sort of “individual entitlement” that is enforceable under §1983. Blessing, 520 U.S., at 343 (emphasis in original).

Gonzaga University v. Doe, 536 U.S. 273 (2002). What this means is that if you have any recourse at all here, it would have to be under Colorado law, not federal law.

As it happens, Colorado Revised Statutes (CRS) section 22-1-123 essentially adopts FERPA as the rule for student privacy under state law, too, at least for public schools. Specificallly, § 22-1-123(2) states: “A school district shall comply with the provisions of 20 U.S.C. sec. 1232g(a) and 34 CFR 99 if a parent or legal guardian of a student either requests the education records of the student or requests an amendment or other change to the education records after reviewing them.” The problem is that, like the federal statute, there is no express right of action granted for violations of this statute and so far as I can see from my research no Colorado court has yet held that there is an implied right of action for violations of the statute.

You may want to see a Colorado civil litigation attorney who is familiar with education law matters and has experience suing school districts to see if you might have a shot at winning anything out of this. It could prove to be a costly fight given that the law on this is unclear, so unless you can show substantial damages here it may not be worthwhile pursuing even if your attorney thinks there might be a cause of action here. Since you did ultimately get the records, although with an eight month delay, I suspect that you would have a hard time showing concrete damages from this.

I reached out to the Colorado DOE and they claim that DPS does not fall under their jurisdiction.

The Colorado Department of Education (CDE) does not control local public school districts. Each school district is an independent entity governed by the school board for the district. So the CDE is limited in what it can do for you in situations like this. It has no power to force the district to cough up the records.

DPS is slow to give records to noncustodial parents because it gets caught in the cross-hairs of family disputes and custodial parents get all up in arms claiming noncustodial parents do not have any rights to that under the decrees in their case. It becomes something of a minefield for the district. I do not mean to suggest that excuses the district from complying with its obligations under FERPA and Colorado law, but I do have some sympathy for the position the district faces when caught between battling parents.

 

[Taxing Matters]

It's off-topic, but kudos to quincy on the owl avatar.

 

[HRZ]

Added point/suggestion ....many a school district has a policy about records access and failure to follow the policy to a T gives them a built in excuse that you failed to address procedures or your administrative remedies .

And locally a parent has a right to go read them and make your own copies ....but they have no duty to make copies and mail them to you

But your post indicates you now have them ..after a frustrating quest ...delay and frustration are not going to be actionable in any useful way to help you ...totally useless Hill to attack in my lay view .

 

[Zigner]

Who had a personal injury or died as a result of this?

 

[Ohiogal]

It's off-topic, but kudos to quincy on the owl avatar.

We need to ask him how many licks it takes to get to the center of a tootsie pop...

 

[Taxing Matters]

We need to ask him how many licks it takes to get to the center of a tootsie pop...

If I recall the old television ad, the answer is 3....

 

[dhmachura]

I was served with an emergency restriction of parenting time in october 2015. Colorado Statute provides that a major change in the child's physical and/or legal custody cannot be revisited until two years have lapsed. That being said, the court order made no specific mention that my rights as a parent are revoked under FERPA to review my daughter's records.

My daughter has attended four high schools since the matter ensue. She was identified as gifted and talented in 2013 and her GPA is 0.333. This is not a typo. I filed a complaint with the Federal DOE who reviewed the court order and responded that DPS had violated my rights as a parent. I encountered difficulties from each high school because my daughter's father made it a point to disparage me to each school.

It took me approximately 8 months to get the transcripts and only after the DOE determined I had been wronged. As to damages? I believe my daughter's current 0.33 GPA may not be a reality had I been afforded the opportunity to intervene as a parent under FERPA. As a mother who was solely responsible for her daughter's education that led to her gifted and talented identification, words do not express the psychological distress I have undergone.

Thoughts?

 

[HRZ]

I feel your pain ( I have been to court over gifted student issues as well ) but I don't think courts here on earth can address your pain or to rewrite history .

 

[Zigner]

I was served with an emergency restriction of parenting time in october 2015. Colorado Statute provides that a major change in the child's physical and/or legal custody cannot be revisited until two years have lapsed. That being said, the court order made no specific mention that my rights as a parent are revoked under FERPA to review my daughter's records.

My daughter has attended four high schools since the matter ensue. She was identified as gifted and talented in 2013 and her GPA is 0.333. This is not a typo. I filed a complaint with the Federal DOE who reviewed the court order and responded that DPS had violated my rights as a parent. I encountered difficulties from each high school because my daughter's father made it a point to disparage me to each school.

It took me approximately 8 months to get the transcripts and only after the DOE determined I had been wronged. As to damages? I believe my daughter's current 0.33 GPA may not be a reality had I been afforded the opportunity to intervene as a parent under FERPA. As a mother who was solely responsible for her daughter's education that led to her gifted and talented identification, words do not express the psychological distress I have undergone.

Thoughts?

If your contact with the child was restricted, what do you think you could have done differently?

On what basis was the emergency order granted?

What specific statute do you believe says that physical and/or legal custody cannot be reviewed more often under any circumstances?

 

[not2cleverRed]

I was served with an emergency restriction of parenting time in october 2015. Colorado Statute provides that a major change in the child's physical and/or legal custody cannot be revisited until two years have lapsed. That being said, the court order made no specific mention that my rights as a parent are revoked under FERPA to review my daughter's records.

My daughter has attended four high schools since the matter ensue. She was identified as gifted and talented in 2013 and her GPA is 0.333. This is not a typo. I filed a complaint with the Federal DOE who reviewed the court order and responded that DPS had violated my rights as a parent. I encountered difficulties from each high school because my daughter's father made it a point to disparage me to each school.

It took me approximately 8 months to get the transcripts and only after the DOE determined I had been wronged. As to damages? I believe my daughter's current 0.33 GPA may not be a reality had I been afforded the opportunity to intervene as a parent under FERPA. As a mother who was solely responsible for her daughter's education that led to her gifted and talented identification, words do not express the psychological distress I have undergone.

Thoughts?

I believe that this only applies after a parent has been afforded a chance to respond to the ex parte emergency order.

So, did you not respond to the emergency order? If you did respond, and still had your parenting time restricted, on what basis was this restriction granted?

I realize that you are primarily concerned with your daughter's academic records in your initial posting, but I am trying to better understand the situation.

 

[HRZ]

even if we agree the schools got your data access rights 100% wrong ...I don't think there is a useful remedy under FERPA ...your beef is with EX , who you say interfered with you access.